State v. Mullin-Coston

• Citation: 64 P.3d 40,115 Wash.App. 679
• Decision Date: 18 February 2003
• Docket Number: No. 49713-8-I.,49713-8-I.
• Parties: STATE of Washington, Respondent, v. Thomas MULLIN-COSTON, Appellant.
• Court: Washington Court of Appeals

64 P.3d 40

115 Wash.App. 679

STATE of Washington, Respondent, v. Thomas MULLIN-COSTON, Appellant.

No. 49713-8-I.

Court of Appeals of Washington, Division 1.

February 18, 2003.

Christopher Gibson, Catherine Glinski, Nielsen Broman & Koch PLLC, Seattle, for Appellant.

Lee D. Yates, Senior Deputy Pros. Atty., Seattle, for Respondent.

COLEMAN, J.

A jury convicted Thomas Mullin-Coston of premeditated first degree murder for his role in the strangling and stabbing death of 15-year-old Sarah Starling. A different jury previously convicted Mullin-Coston's codefendant of the lesser degree offense of second degree intentional murder. The primary issue presented on appeal is whether the doctrine of nonmutual collateral estoppel precludes the State from relitigating the codefendant's premeditation. We adhere to the rule, adopted in the overwhelming majority of jurisdictions, that nonmutual collateral estoppel does not apply in criminal proceedings. The policies of judicial economy and consistency that justify applying the doctrine in civil cases is outweighed in criminal cases by the public's interest in having each case decided on its merits.

Mullin-Coston also argues that the trial court erred in giving a misleading accomplice liability instruction and allowing witnesses to mention that he was in jail during conversations they had with him after he was arrested for the murder. We reject these arguments as well. The accomplice liability instruction the court used accurately mirrored the language of the accomplice liability statute. Further, the fact that Mullin-Coston was in jail was relevant and necessary contextual information, and the trial court did not abuse its discretion in concluding that its probative value outweighed its prejudicial effect. We affirm.

FACTS

On March 9, 1999, 15-year-old Sarah Starling told her mother that she wanted to go meet her ex-boyfriend, Jason McDaniels, in order to bring closure to their relationship. Her mother did not want her to go, but Sarah insisted and her mother eventually relented. The next day, Sarah's body was found in Kingsgate Park. She had been strangled, beaten, and then killed by a stab wound to her neck.

McDaniels had lived with Sarah and her parents for a few weeks, but moved out after he and Sarah had a fight. Mullin-Coston had been McDaniels' friend for several years, and on the night of the murder, they were socializing with friends at Anne-Marie Kalabany's apartment. McDaniels called Sarah from the apartment and asked her to meet him there. Before she arrived, Heather Fletcher overheard McDaniels calling Sarah a "bitch" and saying he "wanted to have her ass kicked." Mullin-Coston was in the room when McDaniels made those statements, but he did not say anything. According to Mullin-Coston's testimony, while he and McDaniels were smoking on the back porch of the apartment, McDaniels showed him a knife and said he was going to kill Sarah. Mullin-Coston said he did not take McDaniels seriously at the time. Sarah arrived at Kalabany's apartment at about 8 p.m., picked up Mullin-Coston and McDaniels, and left with them in her mother's car.

Mullin-Coston testified that after they left the house, they all went to a park and he took a walk while Sarah and McDaniels talked. They left the park, and on the way home Sarah missed the exit for Mullin-Coston's house. McDaniels called her "stupid," and she began driving erratically. When they reached Kingsgate Park, McDaniels told her to pull over. He reached over from the passenger seat, shifted the automatic transmission into "park," and took the keys from the ignition. According to Mullin-Coston, the two exchanged a few words and then McDaniels began to choke her with both hands. He further testified that he sat in the back seat and watched as McDaniels choked Sarah to unconsciousness, but he did nothing to try to stop McDaniels. The State, however, presented the testimony of three witnesses who said Mullin-Coston admitted to them that he was the one who strangled Sarah. He said that after Sarah lost consciousness, McDaniels dragged her into the woods while he stayed in the car. Mullin-Coston said he did not see McDaniels stab Sarah or know for certain that McDaniels had killed her until McDaniels returned from the woods. Mullin-Coston also testified that he thought Sarah was dead when McDaniels pulled her from the car.

After leaving Sarah's body in the woods, Mullin-Coston and McDaniels went back to Kalabany's apartment. McDaniels told her that they had killed Sarah, and she helped them come up with a story to explain Sarah's disappearance. They decided they would tell the police that McDaniel's ex-girlfriend abducted Sarah by force. Meanwhile, Sarah's mother was waiting for her at the mall, where Sarah was supposed to pick her up after talking with McDaniel. At about 9:30 p.m., she called her daughter's pager, but Sarah did not answer. Shortly thereafter, McDaniels and Mullin-Coston arrived at the mall in Sarah's mother's car. She asked the two where Sarah was. They told her that McDaniels' ex-girlfriend had abducted Sarah. The two defendants then drove Sarah's mother to several places, supposedly looking for Sarah. Sarah's mother dropped them off at a friend's house and went home after about three hours.

Joe Eddie, a friend of Mullin-Coston's, testified that he was visiting a friend on the night of the murder when Mullin-Coston and McDaniels arrived and asked him for a ride to Bothell. Eddie agreed. As they were driving, Mullin-Coston told Eddie that they had just killed a girl. Eddie did not believe him, so Mullin-Coston offered to show Eddie the body. Eddie declined. After they dropped McDaniels off, Eddie asked Mullin-Coston what happened. Mullin-Coston said he put the girl to sleep¹ and McDaniels stabbed her.

The morning after the murder, Mullin-Coston showed up at Eddie's house and they had another conversation. Mullin-Coston asked Eddie what to do. By then, Eddie had seen a helicopter and ambulance and believed Mullin-Coston's story. Mullin-Coston said if he was caught, he would blame everything on McDaniel. At trial, Mullin-Coston denied that he made any of the incriminating statements to which Eddie testified. Kalabany testified that on the day after the murder, she had a conversation with Mullin-Coston in which she related statements McDaniels had told her about the murder. She told Mullin-Coston that McDaniels had told her that both of them killed Sarah. McDaniels had told her Mullin-Coston was in the back seat and reached up to put Sarah in a sleeper hold, rendering her unconscious. Then Mullin-Coston pulled her into the back seat, and McDaniels drove the car to a wooded area, dragged Sarah into the woods, and stabbed her. Kalabany testified that as she was relating this conversation to Mullin-Coston, he never contradicted her and was nodding his head. Mullin-Coston testified that he never meant to agree with Kalabany during this conversation. He said he did not deny involvement at that point because he was "just basically listening to what she was saying, taking it in."

Another witness, Heather Fletcher, testified that she and Mullin-Coston went to McDonalds to eat at about 9 p.m. the day after the murder. She had been with Kalabany and the two defendants throughout the night, but according to her testimony, she did not yet know what had happened. She asked Mullin-Coston what was going on as they were waiting in the drive-through. He told her that he had put Sarah in a "sleeper," she passed out, and then McDaniels dragged her into the woods in Kingsgate Park. He said McDaniels stabbed Sarah with a knife. She asked him why they did it, and he said he did not know.

Sarah's body was found at about 5 p.m. on the day after she died. Later that evening, Kalabany, Fletcher, and Jennifer Wirkman, another friend who knew about the defendants' involvement in the murder, all went to the police. Kalabany later identified the murder weapon as one of her kitchen knives, which had disappeared from her apartment on the night of the murder.

Police arrested Mullin-Coston and McDaniels. Fletcher testified that she visited both defendants several times after they were arrested. Mullin-Coston also called Eddie from jail and told him that McDaniels was going to try to say that Mullin-Coston committed the murder. Mullin-Coston said that he would tell the police where the murder weapon was located and say he did not have anything to do with it. He also asked Eddie to call the jail and find out McDaniels' whereabouts. Eddie called the police instead and gave them a statement. Mullin-Coston called Eddie again shortly before trial and told him he was going to do his time and that he was not mad at Eddie.

The State charged both defendants with first degree premeditated murder. The trials were severed, and McDaniels was tried first. He claimed Mullin-Coston strangled Sarah and then forced him to stab her at gunpoint while she was unconscious. The jury convicted him of the lesser degree offense of second degree intentional murder. The jury left the verdict form blank with regard to first degree murder. After a separate trial, a different jury convicted Mullin-Coston of first degree murder.

ANALYSIS

1. Collateral Estoppel

Mullin-Coston argues that by convicting McDaniels of second degree intentional murder rather than premeditated first degree murder, the jury necessarily found that McDaniels did not act with premeditated intent. Accordingly, Mullin-Coston asserts that the State was barred in his trial from relitigating the issue of McDaniels' premeditation. He further argues that in failing to so instruct the jury, the court omitted an essential element of the offense, and that his attorney provided ineffective assistance by failing to argue this issue at trial. We reject these arguments because we hold that issues decided by one defendant's jury are not binding on juries in later trials of a codefendant.

The...